Updated at 1:28 p.m. ET on June 13, 2019.
The Office of Special Counsel says that Kellyanne Conway, a senior adviser to President Donald Trump, repeatedly violated the Hatch Act and should be fired.
OSC says Conway broke the law by disparaging Democratic candidates for president, both while appearing on TV in her official capacity as an adviser to the president and on her Twitter feed. The Hatch Act prohibits most executive-branch employees from politicking. OSC, not to be confused with the office of former Special Counsel Robert Mueller, is the federal agency that polices the federal civil service.
OSC’s recommendation is important not because it is likely to result in Conway’s firing, but because it is almost certain not to. There’s no question of Conway’s guilt here: OSC doesn’t waffle about whether she broke the law, and there’s no Mueller-style legalistic parsing. The report’s conclusion is clear, as is the recommended punishment. And yet the only person who can punish Conway is the president—the very man on whose electoral behalf she broke the law, and who has made clear, as recently as Thursday, his willingness to break the law in order to win elections.
“Ms. Conway’s violations, if left unpunished, would send a message to all federal employees that they need not abide by the Hatch Act’s restrictions. Her actions thus erode the principal foundation of our democratic system—the rule of law,” OSC wrote in a letter to the president. The office identified at least 10 instances of Conway breaking the law.
But Trump has already made clear that he has no respect for the rule of law. The White House promptly dismissed the report. “The Office of Special Counsel’s unprecedented actions against Kellyanne Conway are deeply flawed and violate her constitutional rights to free speech and due process,” a statement said, complaining that OSC was “influenced by media pressure and liberal organizations” to “weaponize the Hatch Act.”
In a letter to OSC, White House Counsel Pat Cipollone argued that the process didn’t give Conway enough time to respond, that she is not subject to the Hatch Act, and that OSC’s interpretation violates Conway’s First Amendment rights. Yet this is not Conway’s first run-in with OSC, and the office noted that in the past she has declined to respond to its reports. Nor does the White House’s claim of politicization hold much water. OSC isn’t headed up by some Barack Obama–era holdover or some strident critic of the president’s in the Walter Shaub mode. Henry Kerner, who leads the office, is a Trump appointee and a former Republican staffer in Congress.
Conway is best known for the indelible, Orwellian phrase “alternative facts,” which she coined to defend the administration’s lies about crowds at President Trump’s inauguration. But she has repeatedly tangled with federal watchdogs over the law, too. In February 2017, she encouraged people to buy clothes from Ivanka Trump’s line, earning a scolding from the Office of Government Ethics. In March 2018, OSC found that she had violated the Hatch Act by both endorsing the Republican Roy Moore in a race for the U.S. Senate in Alabama and encouraging voters to oppose his Democratic rival, Doug Jones. Jones won the race.
It’s not that Conway is unaware of the rules. She’s openly thumbed her nose at them. In a May interview, when asked about overstepping the rules, she replied, “If you’re trying to silence me through the Hatch Act, it’s not going to work … Let me know when the jail sentence starts.”
Her cavalier attitude toward the law, while galling, is also probably safe. The Hatch Act is written with the understanding that the president would not want his aides flagrantly and wantonly violating the law, and only the president can fire a senior aide for violating the law. In the Trump administration, that has been revealed as a loophole, since this particular president has no inclination to punish violations that benefit him. (One of the most outspoken critics of Trump’s disrespect for laws and regulations has been the longtime Republican lawyer George Conway, who has used his Twitter feed to criticize the president. He also happens to be married to Kellyanne Conway. As of this writing, George Conway had not yet commented.)
“Ms. Conway’s persistent, notorious, and deliberate Hatch Act violations have created an unprecedented challenge to this office’s ability to enforce the Act, as we are statutorily charged,” OSC wrote. “She has willfully and openly disregarded the law in full public view.”
Conway’s behavior creates a challenge for the press, as well. Television programs have continued to invite Conway on as a guest, despite her long record of dishonesty. But, as the report documents in excruciating detail, she’s also using the access they grant to their viewers to flout the law, delivering attacks on the president’s opponents that she’s legally barred from making.
The report poses little challenge to the White House, though. Boosting Trump’s political prospects, undermining ethics watchdogs, and assailing the rule of law are all part of the same portfolio. Conway is doing precisely what her boss wants her to do.